{ "id": 3734769, "name": "STATE OF NORTH CAROLINA v. RODERICK DARNELLE MILLER", "name_abbreviation": "State v. Miller", "decision_date": "2010-07-06", "docket_number": "No. COA09-1193", "first_page": "291", "last_page": "296", "citations": [ { "type": "official", "cite": "205 N.C. App. 291" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "646 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638825 ], "year": 2007, "pin_cites": [ { "page": "527", "parenthetical": "\"After finding defendant had a prior record level of V, the trial court sentenced defendant to a term of active imprisonment of 132 to 168 months for felony possession of cocaine as an habitual felon and to a 20 day concurrent term for misdemeanor possession of marijuana.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0526-01" ] }, { "cite": "660 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640925 ], "year": 2008, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0574-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-196.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "678 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "403", "parenthetical": "footnote omitted" }, { "page": "404" } ], "opinion_index": 0 }, { "cite": "581 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "57", "parenthetical": "\"The trial court sentenced defendant to concurrent prison terms of a minimum of sixty-four and a maximum of eighty-six months' imprisonment on the first two convictions.\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491581 ], "year": 2003, "pin_cites": [ { "page": "236", "parenthetical": "\"The trial court sentenced defendant to concurrent prison terms of a minimum of sixty-four and a maximum of eighty-six months' imprisonment on the first two convictions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0235-01" ] }, { "cite": "361 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741573 ], "year": 2007, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0400-01" ] }, { "cite": "426 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "333 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547702 ], "year": 1993, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0331-01" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "431 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "552", "parenthetical": "quoting Lemons v. Old Hickory Council, 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988)" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 786", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526495 ], "year": 1993, "pin_cites": [ { "page": "788", "parenthetical": "quoting Lemons v. Old Hickory Council, 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0786-01" ] }, { "cite": "190 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158284 ], "year": 2008, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0458-01" ] } ], "analysis": { "cardinality": 612, "char_count": 12084, "ocr_confidence": 0.779, "pagerank": { "raw": 9.021991259428e-08, "percentile": 0.5038056272778838 }, "sha256": "802251e8c46f0503eceadafcfb5203ce06ca07e76977d7375f8c00bc8c81fd68", "simhash": "1:aa3aec62d6261d74", "word_count": 1989 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RODERICK DARNELLE MILLER" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 5 May 2008, Roderick Damelle Miller (defendant) was convicted of violating a domestic violence protective order and making a threatening phone call. The district court sentenced defendant to a term of thirty days in the custody of the Guilford County Sheriff and ordered defendant to pay $170.00 in court costs. However, the district court suspended the sentence and placed defendant on supervised probation for twelve months.\nOn 14 July 2008, a probation officer filed a violation report alleging that defendant had willfully violated conditions of his probation by testing positive for marijuana on four dates, by failing to report to his supervising officer as directed, and by being away from his residence during established curfew hours. On 17 July 2008, defendant moved the court to activate his sentence. On 31 July 2008, the district court entered an order on violation of probation. The order modified defendant\u2019s special conditions of probation as follows: \u201cUpon completion of active sentence, defendant\u2019s probation is to be terminated. Intensive sanction is lifted while offender is serving active sentence.\u201d The order modified defendant\u2019s sentence of intermediate punishment as follows: \u201ccomply with the additional conditions of intermediate punishment which are set forth on AOC-CR-603, Page Two, attached.\u201d Those additional conditions required defendant to serve an active term of thirty days in the custody of the Guilford County Sheriff, but only on the weekends. Defendant had to \u201creport in a sober condition\u201d to the Guilford County Prison Farm at 6:00 p.m. each Friday and remain in custody until 6:00 p.m. each Sunday. The order required defendant to serve out his sentence two days at a time for fifteen weeks.\nOn 25 November 2008, the probation officer filed another probation violation report. The officer alleged that defendant had violated the terms of his probation by again testing positive for marijuana six more times, and defendant had failed to pay the $170.00 court costs. The probation officer filed an addendum to the probation violation report on 27 February 2009. The addendum added two more days on which defendant tested positive for marijuana, in violation of the special conditions of his probation.\nOn 5 March 2009, the district court entered a judgment and commitment upon revocation of probation or election to serve sentence. The district court concluded that defendant had violated a valid condition of probation upon which the execution of the active sentence was suspended. Pursuant to structured sentencing, the district court revoked defendant\u2019s probation, activated his suspended sentence, and ordered that defendant be imprisoned for a term of thirty days in the Guilford County Prison Farm. The order ordered that defendant be given sixteen days\u2019 credit for time served. Defendant gave notice of appeal to the superior court.\nFollowing a hearing, the superior court also concluded that defendant had violated the conditions of his probation and revoked his probation, activated his sentence, and ordered him to serve thirty days in the Guilford County Prison Farm. This judgment and commitment upon revocation of probation or election to serve sentence was also entered pursuant to structured sentencing. However, the superior court only gave defendant three days\u2019 credit for time served. Defendant now appeals.\nDefendant argues that the superior court abused its discretion by sentencing him to serve the remainder of his sentence on consecutive days. We review the revocation of probation for an abuse of discretion. State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008).\nAt the hearing, defendant asked the court to serve the remainder of the time, \u201cnot on the weekends but from Monday 6 p.m. to Wednesday at 6 p.m.\u201d The court responded:\nI have never been able to convince myself that I have the authority to \u2014 I mean, I think \u2014 serves their sentence of they don\u2019t. And I\u2019m open to you showing me where in the statutes it says that I can do what you want me to do, because nobody\u2019s ever been able to show it to me before but maybe you can.\nDefense counsel replied:\nWell, I don\u2019t think there\u2019s any statute either. I think it\u2019s just the policy of the Sheriff\u2019s Department, sort of somewhat as we were speaking of yesterday, the \u2014 the\u2014the rules of the jail and the county \u2014 the county facilities are \u2014 are run by the sheriff. And if they are willing to accept \u2014 accept someone to report, say, to the farm at a certain time and \u2014 and stay there for two days and leave at that same time two days later, that\u2019s, you know, that\u2019s permissible for the judge to \u2014 to order active time to be done in that manner. I mean, I \u2014 I don\u2019t think that there is a statute that says active time may be done by the weekend. I think that if a judge\u2014 my understanding, this happens all the time in district court[.]\nAfter some discussion, the court announced:\nI\u2019ll revoke his probation, sentence him to 30 days in the custody of the sheriff, credit for time served. And it\u2019s not that \u2014 I don\u2019t have the authority to allow weekends. So, I\u2019m not going to do it. So you can go with the sheriff.\nDefendant now argues that the trial court did have the legal authority to allow defendant to serve his sentence on the weekends, contrary to the court\u2019s assertion otherwise. A trial court abuses its discretion when it \u201cfail[s] to exercise its discretion regarding a discretionary matter and has ruled on it under the mistaken impression it is required to rule a particular way as a matter of law[.]\u201d State v. Partridge, 110 N.C. App. 786, 788, 431 S.E.2d 550, 552 (1993) (quoting Lemons v. Old Hickory Council, 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988)). Defendant argues that the trial court was under the mistaken impression that, under the Structured Sentencing Act, it could not order defendant to serve the remaining fourteen days of his active sentence over the course of seven weekends. We disagree.\nGeneral Statute section 15A-1331(a) states that a criminal judgment entered in superior court \u201cshall be consistent with the provisions of Article 81B of this Chapter and contain a sentence disposition consistent with that Article, unless the offense for which his guilt has been established is not covered by that Article.\u201d N.C. Gen. Stat. \u00a7 15A-1331(a) (2009). Article 81B is the Structured Sentencing Act. The Structured Sentencing Act authorizes courts to impose active punishment, N.C. Gen. Stat. \u00a7 15A-1340.20(b) (2009), which is a \u201csentence of imprisonment [that] is not suspended,\u201d N.C. Gen. Stat. \u00a7 15A-1340.11(1) (2009). \u201c[A]n offender whose sentence of imprisonment is activated shall serve \u00e9ach day of the term imposed.\u201d N.C. Gen. Stat. \u00a7 15A-1340.20(b) (2009). \u201cA sentence activated upon revocation of probation commences on the day probation is revoked[.]\u201d N.C. Gen. Stat. \u00a7 15A-1344(d) (2009). We can find no provision of Article 8 IB that authorizes an active sentence of nonconsecutive days. Defendant directs our attention to \u00a7 15A-1353, which states that a court must issue an order of commitment \u201c[w]hen a sentence includes a term or terms of imprisonment[.]\u201d N.C. Gen. Stat. \u00a7 15A-1353(a) (2009) (emphasis added). Defendant argues that the legislature\u2019s inclusion of the word \u201cterms\u201d authorizes courts to impose an active sentence over multiple intervals of time, such as weekends. We disagree.\nThe confusion may stem from the interchangeability of \u201cterm\u201d and \u201csentence\u201d by both the legislature and the courts, as well as the linguistic convenience of using \u201csentence\u201d as both a verb and a noun. See, e.g., State v. Hemby, 333 N.C. 331, 336, 426 S.E.2d 77, 80 (1993) (\u201cHere, defendant\u2019s three-year sentences imposed, respectively, in groups one and two, each of which consisted of consolidated indictments having equal presumptive terms, must be apportioned equally among the indictments in each group. Thus, in each group, defendant was, in effect, sentenced, to a one-year term on each indictment; and after consolidation the terms were totaled to arrive at the three-year term ultimately imposed.\u201d) (emphases added). Regardless, we read the legislature\u2019s use of \u201cterms of imprisonment\u201d to refer to instances in which a defendant has been convicted of multiple crimes, each carrying a separate term of imprisonment under structured sentencing, which together comprise the defendant\u2019s sentence and not, as defendant argues, to refer to non-consecutive periods of imprisonment. See, e.g., State v. Harris, 361 N.C. 400, 402, 646 S.E.2d 526, 527 (2007) (\u201cAfter finding defendant had a prior record level of V, the trial court sentenced defendant to a term of active imprisonment of 132 to 168 months for felony possession of cocaine as an habitual felon and to a 20 day concurrent term for misdemeanor possession of marijuana.\u201d); State v. Sexton, 357 N.C. 235, 236, 581 S.E.2d 57, 57 (2003) (\u201cThe trial court sentenced defendant to concurrent prison terms of a minimum of sixty-four and a maximum of eighty-six months\u2019 imprisonment on the first two convictions.\u201d).\nAccordingly, we find that Judge Eagles was not under the \u201cmistaken impression that she was required to rule a particular way as a matter of law,\u201d and we hold that she did not abuse her discretion by sentencing defendant to a term of imprisonment comprised of consecutive days.\nDefendant next argues that the trial court erred by not giving him sixteen days of credit for time served. We agree that he has demonstrated that he is likely entitled to credit for time served; however, this issue is not properly before us. This Court recently explained:\n[T]he proper procedure to be followed by a defendant seeking to obtain credit for time served in pretrial confinement in addition to that awarded at the time of sentencing or the revocation of the defendant\u2019s probation is for the defendant to initially present his or her claim for additional credit to the trial court, with alleged errors in the trial court\u2019s determination subject to review in the Appellate Division following the trial court\u2019s decision by either direct appeal or certiorari, as the case may be. Such an approach makes sense given the reality that, in at least some instances, factual issues will need to be resolved before a proper determination of the amount of credit to which a particular defendant is entitled can be made, and such issues are best addressed, as an initial matter, in the trial courts rather than in the Appellate Division.\nState v. Cloer, \u2014 N.C. App. -, -, 678 S.E.2d 399, 403 (2009) (footnote omitted). It does not appear that defendant has yet raised this issue before the trial court. However, defendant is not without relief. As suggested by this Court in Cloer, defendant may \u201cfile a motion for an award of additional credit in the superior court of [Guilford] County pursuant to N.C. Gen. Stat. \u00a7 15-196.4.\u201d Id. at -, 678 S.E.2d at 404.\nAccordingly, we affirm the judgment and order of the trial court.\nAffirmed.\nJudges JACKSON and STROUD concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State.", "Robert W. Ewing for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RODERICK DARNELLE MILLER\nNo. COA09-1193\n(Filed 6 July 2010)\n1. Probation and Parole \u2014 activation of sentence \u2014 active term \u2014 consecutive days \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by sentencing defendant to a term of consecutive days in prison for violating his probation. The trial court was not under a mistaken impression of law as N.C.G.S. \u00a7 15A-1353(a) did not authorize the courts to impose an active sentence over multiple intervals of time.\n2. Appeal and Error\u2014 preservation of issues \u2014 sentencing\u2014 credit for time served\nDefendant did not preserve for appellate review his argument that the trial court erred by not giving him sixteen days of credit for time served as defendant had not yet raised the issue before the trial court.\nAppeal by defendant from judgment entered 12 June 2009 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 25 February 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State.\nRobert W. Ewing for defendant." }, "file_name": "0291-01", "first_page_order": 319, "last_page_order": 324 }